Opinion
September 23, 1952.
Appeal from the Circuit Court, Charles A. Carroll, J.
Burnett Roth, Miami, for appellant.
Thomas H. Anderson and Anderson Nadeau, Miami, for appellee.
In his action against appellee, appellant was awarded a verdict of $4,500, and when the matter was again heard on motion for a new trial the judge entered an order granting the motion unless, within a specified time, a remittitur should be entered for one-third the amount. This so displeased the appellant that he appealed while the appellee, being dissatisfied because a new trial had not been granted outright, cross-assigned as error certain rulings we will presently discuss.
The judge thought that definiteness of support for the verdict was lacking, except the estimate of actual repairs, $1,500, and loss of value without repairs, $3,000, and that as to these there was a duplication. Accordingly he eliminated the lesser amount.
The action grew out of a contract for the construction by appellee for appellant of a building, between two existing structures. The only part of the agreement now pertinent was the stipulation to cover the walls next to the adjourning buildings with stucco containing water repelling material. This was not done. There was testimony about how and whether, because of the proximity of the walls, the application would have been practicable or feasible, but there is no need to pursue the matter, because though agreed to be done it was not, and the immediate concern is only the damage for the failure.
We think the record abundantly supports the judge's characterization of much of the evidence of damage as so indefinite as to be valueless, but our conclusion about the effect of the uncertainty does not coincide with his.
As he indicated, two items of damage were attempted to be developed, i.e., the cost of repairs and the loss in value due to the default.
Of two contractors introduced by the plaintiff, one computed the cost of furring, a remedy he recommended, at $1,425; while the other thought the plaster should be removed to the "bare block" and waterproofing then applied, which would cost $1,500. Although they were not agreed on the method, they were fairly close on the estimated cost of correcting, after the building was complete, the deficiency caused by not applying waterproofing to the two outside walls as construction progressed. Their testimony as to damage that might meanwhile have occurred was far from definite. One of them was asked if "the rafters could have been affected from the dampened condition of the walls * * *" and replied that "in time" the rafters would be rotted. He thought the flashing that had been installed between the building in question and adjacent ones would prevent rain from beating on the walls, "but the dampness [would] still go through the walls in time." The other thought that it was "very possible that the rafters [had] been wet, and they might be a rot of some kind that takes place, but you can't tell unless you open it up."
Besides the two builders, the only other witness for the plaintiff was the plaintiff himself. He set off on a course of comparative values, testifying he had "asked" $29,000 for the property and thought it would have been worth that had the building been properly constructed. Parenthetically, he had paid $9,000 for the lot and about $13,000 for the building. When asked what, in his opinion, the property was then worth, he said "Well, I doubt whether I can get more than about $18,000, if I can get that."
So when the plaintiff's case had been presented there was evidence of some reliability that the cost of curing the defect from failure to waterproof would approximate $1,500, but evidence of any amounts beyond that that the defendant should pay was indeed "lacking". And proof of disparity in values was so speculative and obscure as to afford no information from which the jury could intelligently assess damages measured in that way, even if that be the proper test, a matter we do not feel obliged to answer because of the very uncertainty of the testimony.
At this point, it seems to us, the plaintiff could not complain of the remittitur, for it should have been for the greater instead of the lesser amount.
This brings us to the appellee's questions. The first of these presents the propriety of the court's denial of "The Motion to Dismiss Where it Appeared that there was a Commingling of Causes of Action * * *." Our study of the common law rule we consider applicable, 13(b), 30 F.S.A., does not convince us that error was committed, because among the purposes of motions to dismiss there listed we do not find one referring to improper joinder of causes of action.
Next the appellee challenges the order of the court denying his motion entitled one for "Compulsory Amendment" but stating in the body that it was one seeking an "Order requiring the Plaintiff to amend his complaint: * * * To elect whether he [was] suing on (a) the contract; (b) for breach of warranty; (c) for negligence." We have found no provision in the rules either for a motion for compulsory amendment or a motion to require an election, and have been directed to none. We have not had the assistance of a reply brief by the appellant, which is always of utmost importance in cases where cross assignments of error have been filed, but we have come to the conclusion from our own research that the point appellee attempted to raise was not properly presented by the motions he chose to make.
The cause is reversed with directions to order a further remittitur of $1,500 and then to enter judgment for the plaintiff in an equal amount.
Affirmed in part; reversed in part.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.